Levy v. Morgan

• Decision Date: 16 February 2012
• Citation: Levy v. Morgan, 92 A.D.3d 1118, 938 N.Y.S.2d 659, 2012 N.Y. Slip Op. 1170 (N.Y. App. Div. 2012)
• Parties: Norman LEVY, Respondent–Appellant, v. William MORGAN, Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01170

92 A.D.3d 1118

938 N.Y.S.2d 659

Norman LEVY, Respondent–Appellant,

v.William MORGAN, Appellant–Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 16, 2012.

David W. Morris, Saratoga Springs, for appellant-respondent.

Poklemba & Hobbs, L.L.C., Malta (Gary C. Hobbs of counsel), for respondent-appellant.

Before: MERCURE, Acting P.J., SPAIN, KAVANAGH, STEIN and EGAN JR., JJ.

MERCURE, Acting P.J.

Cross appeals from an order of the Supreme Court(Krogmann, J.), entered September 15, 2010 in Warren County, upon a decision of the court partially in favor of plaintiff.

The underlying facts are also set forth in our prior decision in this action, in which we affirmed Supreme Court's denial of the parties' motions for summary judgment(31 A.D.3d 857, 818 N.Y.S.2d 335[2006] ).Plaintiff possesses real property that is located across State Route 9N from a parcel owned by defendant on the west shore of Lake George in Warren County.Plaintiff also possesses deeded easements granting him a right-of-way for ingress and egress across the northerly portion of defendant's property (hereinafter the northerly right-of-way), and mooring and docking rights adjacent to the northerly boundary line of defendant's parcel.Plaintiff further claims that, beginning in 1992, he used defendant's former driveway—which extended from State Route 9N along the southerly boundary of defendant's property, then around defendant's boathouse, and across defendant's parcel (hereinafter the southerly right-of-way)—to access his dock area.That same year, plaintiff built a concrete bulkhead and steps, and installed a metal cantilevered dock on the northern boundary of defendant's property.The dock was constructed such that it could be lifted out of the lake at the end of each boating season.

Defendant concedes that, in December 2002, he removed and destroyed plaintiff's dock because, he maintains, the dock exceeded the scope of the deeded easement.Shortly thereafter, defendant also began construction of a residence on his property that encroached on the northerly right-of-way.In response, plaintiff commenced this action, and sought temporary and permanent injunctions enjoining defendant from interfering with his use of the northerly right-of-way, as well as his mooring and docking rights.Following a hearing, Supreme Court(Moynihan, J.) issued an order in May 2003 authorizing plaintiff to reconstruct the dock at defendant's expense and enjoining defendant from impeding plaintiff's access, use and enjoyment of the southerly right-of-way for the purpose of reconstructing the dock.¹The order further prohibited defendant from impeding in any way plaintiff's use, possession and enjoyment of his dock and docking and mooring rights.

Defendant does not dispute that he subsequently told plaintiff that “[h]e didn't care what the judge said.Under no circumstances would that dock go back in ... [Plaintiff] would never use the southerly or northerly right-of-way to access [his] dock to drive there.”Defendant subsequently placed fill, debris and construction equipment on the northerly and the southerly rights-of-way.²Plaintiff moved to hold defendant in contempt in July 2003 and, following a hearing, the parties stipulated to a two-week adjournment during which defendant would reconstruct the dock at his expense.After defendant refused to construct the dock on the basis that he was being asked to install an “illegal and unpermitted dock,”plaintiff contracted to have the concrete steps and dock replaced.When plaintiff provided defendant with notice of the construction schedule, defendant placed several dump trucks full of debris and dirt on the southerly right-of-way, requiring plaintiff's contractor to obtain the assistance of three additional men to hand carry the completed dock frames over the piled dirt and debris.

Upon completion of the dock, plaintiff submitted a bill for approximately $35,000 to defendant, who refused to pay.The parties then cross-moved for, among other things, summary judgment.Supreme Court(Krogmann, J.) ordered a hearing to determine the reasonable cost of the dock reconstruction and otherwise denied the motions, and this Court affirmed (31 A.D.3d at 858–859, 818 N.Y.S.2d 335).In September 2008, Supreme Court granted plaintiff a temporary injunction enjoining defendant from preventing plaintiff's use of the southerly right-of-way, and the action proceeded to a bench trial on three issues.

Specifically, the issues certified for trial were (1) whether plaintiff's use of the dock—prior to its removal by defendant—satisfied the prescriptive period, (2) a continuation of the 2003 contempt hearing upon defendant's alleged violation of the May 2003 order, and (3) the reasonable cost of the dock reconstruction.Supreme Court concluded that the 10–year prescriptive period had been satisfied before defendant removed plaintiff's dock in 2002 and, thus, the issue of whether the cantilevered dock exceeded the permitted scope of the deeded easement, which granted plaintiff the right to construct a temporary floating or pole dock, is moot.The court held that plaintiff was entitled to a judgment in the amount of $35,584.50 plus interest at a rate of 5%.Although the court also found that defendant had “blocked, obstructed and otherwise impeded plaintiff's possession, use and enjoyment of his dock or docking and mooring rights,”the court declined to find defendant in contempt of the May 2003 order.³The parties now cross-appeal.⁴

Initially, we reject defendant's argument that Supreme Court erred in concluding that the prescriptive time period had been satisfied.To establish his adverse possession claim at the time this action was commenced, plaintiff was required to demonstrate that his possession of the dock was “ ‘(1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required [10 year] period’ ”( Hodges v. Beattie,68 A.D.3d 1597, 1598, 893 N.Y.S.2d 289[2009], quotingWalling v. Przybylo,7 N.Y.3d 228, 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167[2006];seeZiegler v. Serrano,74 A.D.3d 1610, 1611–1612, 905 N.Y.S.2d 297[2010], lv. denied15 N.Y.3d 714, 2010 WL 4721140[2010] ).Given the testimony at trial regarding plaintiff's construction of the dock in the summer of 1992 and defendant's admission that he removed the dock in December 2002, and according due deference to Supreme Court's credibility determinations, the court properly found that plaintiff established his use...